Marital Rape, and Not Its Criminalisation, Debases Society

The government needs to understand that consent forms the bedrock for deciding whether something is rape or not.

In a series of depositions made during their divorce proceedings, Ivana Trump, ex-wife of current US President Donald Trump, reported incidents of personal “violation” that gave credence to allegations of marital rape. Michael Cohen, the special legal representative of the Republican party, rebuffed this by saying that “by the very definition, you can’t rape your spouse”. This was an ill-informed statement made by a legal professional from the world’s oldest democracy that got rid of this misogynistic exemption to the rape law in the 1990s. Today, as the debate on the constitutionality of Exemption (2) of  Sec 375 of Indian Penal Code – which doesn’t acknowledge any sexual intercourse within the domains of marriage without consent as rape – gets staged in the Delhi high court, the world’s largest democracy is at the cusp of making a choice: what threatens to debase Indian society more, marital rape or its criminalisation?

As a society, we are extremely uncomfortable to publicly acknowledging that marriages can be potentially disharmonious, abusive and dangerous sites of human interaction. According to the National Family Health Survey 2005-06, almost one in ten married women (aged 15-49 years) in India reported to have been forced to have sex by their husbands against their will. Out of 9% of the women who reported sexual assault, 94% suffered it at the hands of their husbands. Gender inequality backed by data on a low female labour participation rate, the socio economic dependence of women on their spouses, a “blame the victim” approach for exposing intimate relations, being ridiculed for not being able to perform the “wifely duty” of keeping the husband happy, poor sensitisation and the slow speed of the criminal justice system are just few of the reasons for gross under-reporting of such cases.

India borrowed this exemption from early British common law when women were considered as chattel (owned by their fathers and then their husbands) who lacked the agency to make decisions for themselves. A husband forcing himself upon his wife was just making good use of the property he owned. There was no concept of the wife’s consent, deemed to have been irrevocably surrendered to her husband on entering the contract of marriage. The wife’s legal identity was subsumed under that of her husband’s post marriage.

Husbands have been historically given the right to exercise corporal punishment to control their erring wives (a Victorian law interestingly also found in Manusmriti). The domestic fortress is privacy’s stronghold. How was it justified for the state to review the intimate acts of a married couple? How could the woman choose to sacrifice the right of marital privacy without her husband’s consent? How could she forsake the chances of reconciliation of her marriage? With the difficulty to prove such an offence, how could the state be sure of not allowing a husband to fall prey to a vindictive wife, especially to gain leverage in a divorce suit? When all reason fails, men often use the weapon of fear to perpetuate regressive cultural practices and laws. As of today, 70 countries across the world – Europe (22), America (22), Asia and Australia (15) and Africa (11) – have criminalised marital rape. No wonder it took two centuries of bold feminist movements and  judicial decisions supported by the real “men” to reach this far.

In 2012, the Justice Verma Committee had observed:

Rape or sexual assault is not a crime of passion but an expression of power and subordination. No relation, including marriage, supplements an irrevocable consent of sexual activity.

In the R vs R case, the UK House of Lords had termed the “implied consent” theory of Hale as a regressive practice and hence abolished spousal rape exemption in 1991. Time and again, courts across the world have recognised that the marital couple is not an individual entity with a mind and heart of its own, but an association of two different individuals with a separate intellectual and emotional make up.

One cannot guarantee sexual autonomy and bodily integrity to one spouse and deny it to the other. A woman’ s sexual autonomy also leads her to control her own reproductive capacity. Allowing spousal rape signals to the perpetrators that a married woman’s right to human dignity is to be accorded less value and protection than that of an unmarried woman. This is a clear violation of Article 14 (equal protection under law), 15 (no discrimination on the basis of sex) and 21 (right to life with dignity) of the Indian constitution.

The New York Court of Appeals noted in People vs Liberta that “a state arguably has no interest in protecting marital privacy or promoting marital reconciliation where a marriage involves domestic violence and where the marriage has decayed to a point where the sexual relations of the spouses are no longer consensual and sexual abuse has occurred.”

Some of the observations made in this ruling are relevant for our case.

• Marital privacy is meant to provide privacy of acts that both husband and wife find agreeable; it is not meant to shield abuse – this is also substantiated by the recent Supreme court verdict on right to privacy and general recommendation 19 of the Convention on Elimination of all forms of Discrimination against women (CEDAW) to which India is a signatory
• Spousal rape and not its reporting as a crime leads to the breakdown of marriage – a spousal rape victim is psychologically more traumatised than a stranger rape victim. It no longer guarantees the safe and protective environment that marriage promises. The sense of trust deficit, isolation and fear felt by a spousal rape victim, if forced to continue with status quo, can lead to the breakdown of the entire family.
• Many crimes without witnesses are hard to prove, yet this is no reason for making a crime “unprosecutable”
• Labelling all wives as potentially vindictive is a poor stereotype backed by no evidence – even in India, Section 498A (which criminalises dowry and cruelty – including the ill defined “perverse sexual conduct”) has been diluted due to claims that it is used as a harassing tool by vindictive wives.

The veracity of such claims have been questioned. Low reporting of crimes due to societal conditioning and low legal awareness, inaccurate method of collection of National Crime Records Bureau (NCRB) data, out of court settlements due to lengthy process of justice/lack of admissible proof are just some of the reasons why prosecution rates are low. You need to strengthen investigative – for example, medical tests within 24 hours – and support – for example, trauma centers – mechanisms to prevent misuse of rape laws, instead of not allowing them to exist in the first place.

The government of the day needs to understand “consent is a sine qua non for any intimate relation” and forms the bedrock for deciding whether a rape has occurred or not. Countries have taken years to refine legislations for prosecuting marital rape to cover special cases like “mistaken belief of consent by the husband due to a history of rough sex”, “transmission of sexually transmitted diseases”, “rape performed under the influence of alcohol” and many more.

As far as the uniqueness of the Indian ecosystem is concerned – poverty, illiteracy, lack of financial empowerment, mindset of the society etc – aren’t these in fact the reasons why marital rape is brushed under the carpet? Babasaheb Ambedkar had said that “law and order are the medicine of the body politic and when the body politic gets sick, medicine must be administered”. The question is how long are we willing to wait to make everyone swallow the first bitter pill?

The criminalisation of marital rape will be a symbolic start for sure. The sentencing could be decided by an expert committee consisting of medical personnel, family counselors, judges and police on the basis of varied aspects like the couple’s sexual history, physical and psychological harm to the victim. Care should be taken that prosecution for marital rape is not made conditional on the stereotypes of the history of marital discord, time taken to report such incidents, behavior of the victim (whether she continues to stay with her husband) after the rape etc.

However, statutory reform has to be accompanied with awareness campaigns sensitising the public (civilians, police, judges, medical personnel) on the importance of consent, timely medical care and rehabilitation, skill development and employment for facilitating economic independence of victims. Only when individual rights are not sacrificed at the altar of privacy and two partners are treated equally shall marriage as an institution continue to survive. Until then, one can never be sure of the “fairytale”.

Samparna Tripathy is a freelancer who writes on public policy and social issues.